White v. Dallas Independent School Dist.

• Decision Date: 26 January 1978
• Docket Number: No. 76-1990,76-1990
• Citation: 566 F.2d 906
• Parties: 16 Fair Empl.Prac.Cas. 739, 45 A.L.R.Fed. 338, 15 Empl. Prac. Dec. P 8072 Mrs. Patsy Ruth WHITE, Plaintiff-Appellant, v. DALLAS INDEPENDENT SCHOOL DISTRICT, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 906

566 F.2d 906

16 Fair Empl.Prac.Cas. 739, 45 A.L.R.Fed. 338,

15 Empl. Prac. Dec. P 8072

Mrs. Patsy Ruth WHITE, Plaintiff-Appellant, v. DALLAS INDEPENDENT SCHOOL DISTRICT, Defendant-Appellee.

No. 76-1990.

United States Court of Appeals Fifth Circuit.

Jan. 26, 1978.

Edith L. James, Dallas, Tex., for plaintiff-appellant.

Patsy R. White, pro se.

Lee Smith, Charles W. Stuber, Dallas, Tex., for defendant-appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before TUTTLE, COLEMAN and RONEY, Circuit Judges.

COLEMAN, Circuit Judge.

In this suit Mrs. Patsy Ruth White alleged that the former maternity leave policy of the Dallas Independent School District had subjected her to unlawful sex discrimination. ¹ The District Court dismissed for lack of jurisdiction. Although Mrs. White argued below that jurisdiction existed on many grounds, her appeal is restricted to claims for relief under Title VII, Civil Rights Act of 1964, 42 U.S.C.A. § 2000e, and Section 1983, 42 U.S.C.A. We affirm the dismissal.

The Title VII cause of action was dismissed because Mrs. White had failed to exhaust her Texas state remedies as required by the federal statute,42 U.S.C.A. § 2000e-5(c), (f). Before the Equal Employment Opportunity Commission ("EEOC") can sue or issue a right to sue letter to a charging party, it must comply with the requirements of deferral to state established mechanisms for eliminating discrimination. Such a deferral is initiated by the charging party filing a written statement with, or by the EEOC transmitting a copy of, the charge to the appropriate state officer or agency. Love v. Pullman, 404 U.S. 522, 92 S.Ct. 616, 30 L.Ed.2d 679 (1972). No deferral is involved if the state has no law prohibiting the discrimination in question. The section requiring deferral to the state and outlining the requirements for the states' laws reads in part:

In the case of an alleged unlawful employment practice occurring in a State, or political subdivision of a State, which has a State or local law prohibiting the unlawful employment practice alleged and establishing or authorizing a State or local authority to grant or seek relief from such practice or to institute criminal proceedings with respect thereto upon receiving notice thereof, no charge may be filed under subsection (b) of this section by the person aggrieved before the expiration of sixty days after proceedings have been commenced under the State or local law, unless such proceedings have been earlier terminated . . . . (Emphasis added.)

42 U.S.C.A. § 2000e-5(c). Thus, if a state has a law meeting the requirements of § 2000e-5(c), consideration of a discrimination charge by EEOC must be stayed for sixty days to allow the state authority time to act.

The Texas legislature enacted Article 6252-16, ² Vernon's Ann. Texas St., to provide relief from discrimination by officials or "employees of the state or its political subdivisions". The statute prohibits the type of discrimination claimed by White and provides civil relief and criminal sanctions against those who do so discriminate. The language of the Texas statute was "chosen to take advantage of the deferral provision" of Title VII in certain instances. Nueces County Hosp. Dist. v. E. E. O. C., 5 Cir. 1975, 518 F.2d 895, 897.

In Nueces County, id., we addressed the issue of whether the EEOC must defer investigation of a charge to state officials for the requisite time when the charge claims that an employer, there a Hospital District, had retaliated against the charging party because of her efforts to be relieved from employment discrimination. We held that Article 6252-16 failed to meet Title VII's requirements for deferral in that instance because the statute was "narrowly drawn to cover specific acts of discrimination, and it obviously does not prohibit an employer from retaliating for an employee's attempts to be relieved from the consequences of the employer's discrimination". Id. at 897-898. Nueces County, was specifically limited to a retaliation charge. We did not address the broader question of whether a charge, alleging discrimination within the limits of the statute, must be filed with the state before the EEOC can investigate or the charging party can sue. Id. at 897, fn. 1.

Congress has seen fit to require claimants to go first to the state whenever a state has enacted legislation providing a remedy or authorizing criminal prosecution for discrimination. ³ We are of the opinion that the Texas statute meets this Title VII requirement for deferral. Before a charging party can be given authority to sue the state or one of its subdivisions, the proper local officials must be notified by either the EEOC or the aggrieved party. The first opportunity to act is to be afforded the state. Nueces County Hospital District v. E. E. O. C., 371 F.Supp. 1126 (S.D.Tex., 1974).

Mrs. White never pursued her remedies under Texas law and urges that notifying the proper officials would have been futile. Mrs. White's argument overlooks the injunctive relief authorized under § 2 of the Texas act, which would seem to have been an ideal way to seek to prevent the enforcement of an unlawful maternity leave requirement, the impending effect of which can be easily predicted far enough in advance to make injunctive relief realistic. Even so, Title VII requires notifying the proper state official and allowing him sixty days to act in the criminal alternative permitted by the Act. The appellant also asserts that our decision should be controlled by General Insurance Company v. E. E. O. C., 9 Cir., 1974, 491 F.2d 133. In General Insurance, the Ninth Circuit held that a Washington state statute declaring wage discrimination illegal was not sufficient to require EEOC deferral to local prosecutors. Unlike the Washington statute, however, the Texas statute specifically addresses itself to Title VII notification and designates the local prosecutors as the recipients of the discrimination charges.

Therefore, the District Court did not err when it held that Mrs. White must first exhaust her state remedies in the criminal alternative permitted by the Act.

The appellant also asserts that the District Court had jurisdiction over her § 1983 claim. In Harkless v. Sweeney Independent School District, 5 Cir., 1970, 427 F.2d 319, 321, we held that "the school district, under Texas law, is of the nature of a municipality". Municipalities are not " persons" subject to suit under § 1983. City of Kenosha v. Bruno, 412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973); Cason v. City of Jacksonville, 5 Cir., 1974, 497 F.2d 949, 951. Thus, the District Court did not have jurisdiction over the cause of action under 42 U.S.C.A., § 1983.

Accordingly, the judgment of the District Court must be

AFFIRMED.

TUTTLE, concurring in part and dissenting in part:

I agree with the majority opinion on the § 1983 issue.

I respectfully dissent from that portion of the majority opinion which holds that Article 6252-16 of Vernon's Revised Civil Statutes of Texas meets the two-part test set up in § 706(c) of Title VII, 42 U.S.C. § 2000e-5(c), for determining when a private party must defer to state proceedings before filing a charge with the EEOC.

I agree that the Texas law, which makes a violation of its provisions a misdemeanor, does indeed prohibit the type of discrimination alleged in White's complaint, thus distinguishing this case from Neuces County Hospital District v. E. E. O. C., 518 F.2d 895 (5th Cir. 1975). However, I do not believe that General Insurance Company of America v. E. E. O. C., 491 F.2d 133 (9th Cir. 1974), can be meaningfully distinguished from this case, and I am persuaded by the reasoning of that Ninth Circuit decision.

In that case the Ninth Circuit addressed the precise issue now before us. A Washington statute prohibited wage discrimination due to sex and made violations a misdemeanor. The court held that the state law did not establish or authorize a state or local authority either to seek relief or to institute criminal proceedings. In reaching this conclusion, the court stated:

We reject the argument of appellee that the state or county prosecuting attorney can qualify as such agency through his general authority to institute criminal proceedings. What the section requires is a showing of such state concern in the specific area of unfair employment practices as to result in the establishment or authorizing of an agency to act in this area. If it had been intended that the general authority of the state attorney to prosecute crime should suffice, there would have been no need to provide that the state or local authority should be empowered to institute criminal proceedings. All that would have been necessary would have been to make the offense a crime.

491 F.2d at 135. See also Curry v. Continental Airlines, 513 F.2d 691 (9th Cir. 1975).

The case now before us differs from General Insurance only in that the Texas statute designates district or county attorneys "as the appropriate state or local official to receive the notice of an alleged unlawful practice occurring in this state from the Equal Employment Opportunity Commission." While the majority opinion finds in this provision a means for distinguishing General Insurance, I do not. A state cannot qualify itself for deferral merely by designating an official to receive notice, for § 706(c) of Title VII sets up the test for determining when deferral is required. Notice to a representative of the state becomes a concern only if that test is first satisfied, and that depends upon whether the state statute meets the dual requirements of prohibiting the alleged acts and setting up an authority to deal with the problem. Even if the Texas statute was intended to take advantage of the deferral provision of Title VII, ¹ those intentions alone are insufficient if the statutory scheme falls short of the § 706(c) test.

Deferral under section...